Quote of the week

The judgments are replete with the findings of dishonesty and mala fides against Major General Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza.

Mabuse J
Helen Suzman Foundation and Another v Minister of Police and Others
21 September 2010

Chief Justice Sandile Ngcobo Claude Leon Lecture

­CLAUDE LEON PUBLIC LECTURE

SUSTAINING PUBLIC CONFIDENCE IN THE JUDICIARY:

AN ESSENTIAL CONDITION FOR REALISING THE JUDICIAL ROLE

SANDILE NGCOBO

CHIEF JUSTICE OF SOUTH AFRICA

University of Cape Town

16 September 2010


INTRODUCTION

It is a great honour to deliver the first Claude Leon lecture here at the University of Cape Town.  I am quite grateful for this opportunity to speak to and exchange views with members of the academic community present, including law students.   I am told that the Claude Leon Foundation has recently endowed a Chair in Constitutional Governance at the University of Cape Town.  This is commendable.  The legal academy is vital to the rule of law: it produces future lawyers, advocates, and judges; it helps guide the growth of legislation and jurisprudence through its insight and inspiration; and, of course, it is the source of some constructive criticism of legal developments that helps to keep the judiciary efficient and upright.

The subject of my address today is the question of confidence in the judiciary.  Unfortunately, not all criticism of the judiciary is as salutary as that which can be found in legal treatises and articles.  Let me give you two examples.  A little over a month ago, a senior member in the ruling party’s youth league was quoted in a daily newspaper as asserting that a High Court Judge arrived at a “drunken decision” when the Judge ruled against the league.[1] Another political leader from the league was quoted to suggest that the High Court decision must be ignored and that he wanted to “warn the judiciary to desist from meddling with our internal political issues.”[2] He went so far as to allege that judges had assumed a political role, stating:

“We have always respected the independence of the judiciary.  However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.”[3]

These assaults on the judiciary are very troubling, for this kind of criticism may well undermine public confidence in our courts.  And yet public confidence in the judiciary is vital to the preservation of the rule of law, and, ultimately, to the preservation of our constitutional democracy.

In light of the importance of public confidence, and in light of these recent attacks, it is vital that all South Africans—judges, lawyers, and laypersons alike—understand why public confidence in the judicial system exists, what might put it at risk and what we are doing, and need to do, to preserve it.  It is these questions that I will explore today.  My talk will consist of three parts.  Firstly, why is public confidence so important?  Secondly, what can and should be done to sustain public confidence in the judiciary?  Thirdly, how can public confidence in the judiciary be undermined?

But first, who are the public?  Justice Susan Kenny got it right when she said:  “As trustees of the rule of law, the judiciary administers the law not for its own benefit, but for the benefit of each and every member of the community.  The public, then, is the whole community – which at times may not be represented by the majority or the media.”[4]

WHY IS CONFIDENCE IN THE COURTS IMPORTANT?

Why is public confidence important?  In short, because it is necessary for the effective performance of judicial functions.  Former Chief Justice of Israel, Justice A Barak has said, public confidence is “[a]n essential condition for realizing the judicial role.”  He explains that “the judge has neither sword nor purse.  All he [or she] has is the public’s confidence in him [or her].  This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.”[5]

The vulnerability of the judicial branch has been acknowledged for centuries.  Alexander Hamilton, one of the founders of the American republic, famously recognised that in a body politic whose legislative, executive and judicial powers are separated, the legislative branch controls money, the executive controls force, and the judiciary controls neither.[6] More recently, our own former Chief Justice Mahomed expressed this idea with his usual eloquence when he observed that:

“[u]nlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will.  The superior courts and the Constitutional Court do not have a single soldier.  They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts.  The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.

Its ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation.”[7]

In other words, the acceptance of judicial decisions by citizens and by governments, which is essential for peace, welfare and the maintenance of the rule of law, rests, not upon coercion, but upon public confidence.[8]

It is important to the rule of law that people and governments develop such confidence in the judiciary that they routinely accept and comply with judicial decisions.  This acceptance is most necessary in the case of decisions that are controversial and unpopular.  Every day courts make decisions that injure or offend people; sometimes, as in cases of the eviction of informal housing dwellers, judicial decisions may redound to the injury of many people.  Of course, there is a greater good underlying these decisions—respect for the law, and the policy goals and the protection of rights that the law represents.  Yet that greater good is not always apparent to losing parties.  And yet the rule of law depends upon peaceful acceptance of those decisions, and compliance with court orders, even if they are strongly resented.

Moreover, as I have said before, without public confidence in the ability of the courts to dispense justice, there can be no faith in the rule of law. Without faith in the rule of law, valuable relationships of trust within society begin to break down.  Citizens can no longer be assured that their rights will be respected.  Businesses can no longer be assured that their contracts will be honoured.  Victims of crime can no longer be assured that justice will be served in court.

Yet on the other hand, where law reigns, public confidence in the court system has a multiplying effect.  Those who would violate the rights of the citizenry know that they will be held accountable, so they refrain from violating those rights.  Businesses that know they will be held to their obligations in court will meet those obligations willingly.  And potential criminals will think twice about breaking the law when they know that lawbreakers are swiftly and justly punished.  When the public has faith in the courts, judges do not only protect the litigants that enter the courthouse doors—they protect all people.  The justice that the courts promise to deliver has a deterrent effect that encourages all citizens to act lawfully.

WHAT CAN AND SHOULD BE DONE TO SUSTAIN PUBLIC CONFIDENCE IN THE JUDICIARY?

As we have seen, public confidence in the judiciary is vital.  But what can be done to foster that confidence?  Before we address this question, we must first understand what the concept of public confidence means when applied to the judiciary.  Indeed, public trust in the judiciary has many components.  As Justice Barak has observed, trust in the judiciary:

“means confidence in judicial independence, fairness, and impartiality.  It means public confidence in the ethical standards of the judge.  It means public confidence that judges are not interested parties to the legal struggle and that they are not fighting for their own power but to protect the constitution and democracy.  It means public confidence that the judge does not express his [or her] own personal views but rather fundamental beliefs of the nation.”

Justice Barak rightly emphasizes the broad dimensions of the ideal of public confidence.  Across the globe, judiciaries enjoy the confidence of their citizens for only so long as the people believe that judges are honest, incorruptible, and guided by principles of independence, impartiality, fairness, and fealty to established law.  Here in South Africa, these principles are firmly secured in our Constitution.  As a general matter, this means that the people will retain confidence in the judiciary only so long as it and the other branches faithfully adhere to our Constitution.

Of particular importance is section 165 of the Constitution, which vests judicial authority in the courts; demands that the courts be “independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”; commands that “[n]o person or organ of state may interfere with the functioning of the courts”; and requires that “[o]rgans of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”  Faithful compliance with these constitutional requirements will go a long way towards ensuring public faith in the judicial branch.

Fortunately, we do not start from scratch.  While history is replete with examples of judiciaries undone by a lack of confidence, our judiciary is not one of them.  Even during the darkest days of apartheid, certain judges and judicial decisions shone as beacons of light marking the fundamental promises of fairness and justice upon which law is founded.  This much is evident from the original composition of the Constitutional Court, for some of the most distinguished and stalwart judicial defenders of the new Constitutional dispensation were men who had served as judges as the Apartheid era drew to a close.  Indeed, our judiciary has a long and noble history of integrity, impartiality and independence.

Since 2006, I have had the privilege of teaching a seminar on the role of the judiciary in the enforcement of socio-economic rights at the law schools of Harvard and Columbia Universities in the United States.  From these experiences I can assure you that our judiciary is held in high regard.  Our decisions are read and taught in law schools around the world—and not just when I’m the teacher!

In this country too, whenever there is controversial legislation proposed or enacted, one hears threats of a challenge in the courts, in particular, the Constitutional Court.  Indeed, more and more people are resorting to courts in order to resolve their disputes.  As the unfortunate comments I mentioned earlier demonstrate, even internal disputes within political parties are taken to court and resolved there.  This is good for democracy, and it illustrates the confidence that the people have in the judicial system.

To date, enforcement of court decisions and orders has not been an issue in this country.  However, as those unfortunate reported comments suggest, continued public support cannot be taken for granted.  The challenge facing the judiciary, then, is how to sustain and build upon this public confidence.  According to Justice Smith of Australia, public confidence “depends on the reality and appearance of individual and institutional independence and the impartiality of the courts.”[9] The related principles of independence and impartiality are of central importance.  Indeed, they are critical to democratic society.

From the outset, it is important to recognise that the independence and impartiality of the judiciary are not private rights of judges.  They are human rights of citizens.  The Universal Declaration of Human Rights enshrines the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.  The International Covenant on Civil and Political Rights guarantee the exercise of this right.  And section 34 of our Constitution guarantees everyone, “the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

It follows that the public has a powerful interest in effective and just courts.  In particular, the people have an interest in assessing whether courts operate without fear, favour or prejudice, as our Constitution requires, and whether they do so efficiently given the substantial public and private resources that are invested in the judicial system.  This interest is deepened by the special role of the judiciary in our constitutional democracy.

The judicial branch is responsible not only for resolving disputes between private parties, but also for resolving disputes between government and private parties and even disputes between different branches or sectors of government.  It has the responsibility to protect individuals from government overreaching, and it plays an important role in our country’s constitutional balance of powers.

Indeed, sometimes the judiciary is the fulcrum on which the powers of government are balanced.  The judiciary, after all, is the branch of government that holds the other branches to their responsibilities.

If the actual independence and impartiality of the judiciary are essential to the successful operation of democracy, so too is the perception that courts provide an independent and impartial forum to resolve disputes and provide protection to individuals.  As already suggested, without public confidence in the judiciary, its ability to do justice is lost.  Where people do not trust courts, they will resort to other means to resolve matters that properly belong to the realm of the judiciary.  I am reminded here of a comment by an administrative judge in the US who expressed the idea well when he explained that, if the public does not have faith in the judiciary, “people won’t go to court, but to the streets or to a gun dealer.”

There are definite steps that judges can and should take to secure their reputations for impartiality and independence, given the critical importance of these factors.  In terms of impartiality, judges must be ever vigilant in assessing their ability to apply an unbiased mind to each dispute they hear.  It is not enough that judges recuse themselves when they are actually biased against a party or cause.  Rather, judges must carefully reflect upon whether their sitting in a particular matter would give rise to a reasonable apprehension of bias in the mind of a reasonable litigant armed with the relevant facts.  Where it would, the judge must recuse himself or herself, rather than waiting for a litigant to seek such recusal.  More generally, to assure that “justice is not only done, but seen to be done,” judges should carefully monitor their courtroom demeanour, and should always strive to interact with litigants and their legal representatives in a civil and professional manner.

According to Justice Barak, public confidence in the judiciary can be maintained in the following ways:

1. The judge ought to be aware of his [or her] power and its limits.  Due to the great power that is reposed in a judge in a democracy, there is potential for abuse of power by judges.

2. A judge must admit his [or her] mistakes.  We are human and therefore fallible.  Judges must have the humility and courage to accept and correct their mistakes.

3. Judges must display modesty and absence of arrogance in their writing and thinking.

4. Judges must be honest.  If they have created a new law they must admit it.  Honesty builds acceptance.”[1]

To these I might add that the unrelenting pursuit of excellence in one’s work will build a reputable, vigilant and trusted judiciary.  In order for the judiciary to deliver on its commitment to justice, it is important that judges perform to the highest standards expected of them.

Even outside of the courtroom, judges must be aware of their special role in our democracy, and conduct themselves in a manner befitting their office.  I appeal once again to Justice Barak’s eloquence.  Judges, he writes:

“must understand that judging is not merely a job but a way of life.  It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes objective and impartial search for the truth.  It is not fiat but reason; not mastery but modesty; not strength but compassion; not riches but reputation; not an attempt to please everyone but a firm insistence on values and principles; not surrender to or compromise with interest groups but an insistence on upholding the law; not making decisions according to temporary whims but progressing consistently on the basis of deeply held beliefs and fundamental values.”[11]

PRACTICAL STEPS TO ACHIEVE PUBLIC CONFIDENCE

Judges must strive to live up to the vision expressed by Justice Barak.  Yet the judicial virtues are not simply abstract ideals for judges to aspire to in their hearts and minds.  In terms of judicial independence, concrete steps are required to give meaning to the constitutional imperative in section 165 that courts be “independent and subject only to the Constitution and the law.”  As one of three co-equal arms of government, the judiciary must enjoy the same status as the legislative and executive branches.  It is therefore not entirely consistent with the notion of judicial independence if the courts are administered, as they historically have been in our nation, by the executive branch.  This is no more defensible than it would be to have the legislature or executive administered by the judiciary.

My view in this regard is not new.  Indeed, I articulated my stance in a paper I delivered at the First Conference of Judges in July 2003.  One goal I set for myself upon taking office was to remedy this aberration.  The first step in realizing true judicial independence is to give the Office of the Chief Justice the same administrative status—particularly with regard to budgetary independence—as the Office of the President.  And it gives me great pleasure to report that this first hurdle has recently been cleared.  Just less than two weeks ago, the President announced by Proclamation in the Government Gazette, the creation of an independent Office of the Chief Justice.  While this is a significant step in the right direction, more work remains.  Next, it is necessary to establish judicially-based court administration.  This is a long-term project, but one that must still be pursued.

Institutional changes are necessary, but not sufficient.  Judicial independence also means that the court must be free from political influence.  It is not enough, however, that the judiciary in fact be free from influence.  It must also be seen to be free from influence.  How can this be assured?  The answer, it seems to me, is that the judiciary must be accountable.  Accountability implies the following.  Firstly, the justice system must be accessible and efficient, and responsive to the needs of the public that it serves.  Secondly, judges must give reasons for their decisions in a timely fashion and be open to informed criticism of those decisions.  Finally, there must be diversity in the judiciary that reflects the diversity of our nation.

Section 34 of the Constitution guarantees to everyone the right to have access to the courts.  When such access is denied, public confidence in the judiciary is inevitably diminished.  To this end, justice must be affordable and efforts must be made to provide legal assistance to those without the resources to pay for legal representation.

Because “justice delayed is justice denied,” meaningful access to the courts is compromised where the courts operate inefficiently.  There are at present huge delays in the justice system.  In particular, there are delays in getting cases to trial and delays in delivery of judgments.  Both these factors limit the accountability of the judiciary and endanger public confidence in the judiciary.

Our courts generally suffer from huge backlogs.  To respond to the particular issue of delays in getting to trial, I have put together a task team to investigate the causes of the delays and to recommend steps to reduce the length of time between initiation of litigation and final resolution.  I have also asked for input from the General Bar Council, the Law Society and the National Prosecuting Authority.  I expect that these groups will have useful input to inform future policymaking, and am optimistic that the results of this investigation will allow us to make inroads on this vexing problem.

Delay in the delivery of judgments is another problem.  Why are written judgments important?  Exposing the reasons for decisions to the public enables society to criticize, understand and—one hopes—perhaps even applaud the reasoning that has informed the judicial decision-making.  Sir Kitto has explained that:

“The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practice of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance.”[12]

For their part, judicial officers have a duty to deliver judgments in a timely fashion.  When I took office I was greatly disturbed to discover that there was a vast number of reserved judgments that had yet to be handed down, despite the passage of four, five or even six years.  Such delays are intolerable.  As I have said, for the individuals involved, justice delayed is justice denied.  The harm is not limited, however, to those with a direct stake in the outcome.  It is critical that members of the broader community have access to timely judgments so that they can assess for themselves whether the courts are fulfilling their constitutional role.

A judge who sits on a case for years fails to perform the threshold judicial function, the adjudication of disputes.  This phenomenon has led me to recommend to the Judicial Services Commission (JSC) the initiation of disciplinary proceedings against judges whose judgments have been outstanding for an inordinate time.  I am pleased to report that this effort has begun to yield results.  Of the 47 judgments outstanding as of October 2009, 27 remain outstanding and we continue to pursue their final resolution.  Parallel to our efforts to discipline judges who have repeatedly failed to provide judgments within a reasonable time period, we are investigating the causes of these delays.  Once we have this information, we will devise an appropriate remedy.  We have also recently adopted and submitted to the Minister a Code of Conduct for Judges, which sets out, among other things, standards for delivery of judgments.

It is my hope that as we move forward to an era in which the judiciary is able to manage and allocate its own resources, delays due to resource constraints will become a thing of the past.  We need to move with speed to provide the courts and judges with modern technological resources, efficient internet and electronic research facilities and adequate research assistance.  We also need to appoint more judicial officers and to provide more court facilities.  I believe these measures will go a long way towards ensuring that judgments are delivered on time.  I am also optimistic that the newly constituted and invigorated Office of the Chief Justice, and a future judicially-based court administration, will help secure and implement the needed reforms, and thereby ensure meaningful access to court for all South Africans, rich and poor alike.

There is another factor that is crucial to sustaining public confidence.

In a country such as ours, judicial diversity is another critical component of accountability and therefore public confidence.  We come from a history where judges were drawn from a narrow sliver of society – white males.  On these grounds alone, the judiciary lacked legitimacy.  Our Constitution changes the equation.  Section 174(1) provides that “[a]ny appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.”  Section 174(2) provides a special mandate to the JSC.  It requires that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial officers are appointed.  This provision echoes the preamble to the Constitution which declares that “[w]e, the people of South Africa . . . [b]elieve that South Africa belongs to all who live in it, united in our diversity.”   But at the same time, the Constitution recognises that to achieve diversity in the judiciary, it is necessary to redress the race and gender imbalance brought about by our history.

The importance of diversity to public confidence in the judiciary cannot be gainsaid.  It underscores the principle that consideration of a broad range of views is the surest path to sound governance and a foundation of democracy. Diversity on the bench promotes confidence in judges in many ways.  When a litigant comes before court and sees from time to time people reflective of his or her own background and experience, it engenders confidence that he or she can get a fair trial.  It also promotes confidence because it facilitates the taking into account of different perspectives.  In short, “diversity allows justice to see.”

While progress has been made, there remains much work to be done to attain a bench fully reflective of our society.  In particular, the number of women in the judicial ranks is worrisome.  To give but a few statistics, in the Constitutional Court of 11 justices there are only 2 women.  In the Supreme Court of Appeal, out of the 22 judges there are only 6 female judges.  I can assure you that the High Court numbers are not much better.  In total, of the 221 judges in South Africa, only 54 are female.  The dearth of female judges is reflective of a dearth of female applicants for judicial positions.  As such, we need programs which will prepare women for the bench and encourage qualified women to apply.

Pursuant to the special meeting of the JSC I will be appointing a special committee of the JSC to explore ways and means of expanding the pool from which female judges can be appointed.

At the same time that we strive for diversity, we must also strive for transparency.  The appointment of judges must be a transparent process.  People must understand the process and the criteria so that they can independently evaluate the effectiveness of the criteria in identifying capable men and women to sit on our bench.

The Constitution does not provide detailed criteria for judicial appointment.  As mentioned, section 174(1) refers to “any appropriately qualified woman or man who is a fit and proper person.”  It does not define “appropriately qualified” or “fit and proper person”; instead, these broad criteria were deliberately left undefined so as to gather meaning from the experience of the JSC.  One of the challenges now facing the Commission is to distil the teachings of the last fifteen years into transparent selection criteria.  It is vital that the public know and understand the criteria.  People should be able not only to debate the adequacy or the effectiveness of the selection criteria, but also monitor their consistent application.

To this end, just last Friday I convened a special sitting of the JSC, the Judges President and the Provincial Premiers, in order to reflect upon the criteria for the appointment of judges.  It was indeed a comprehensive and frank discussion.  And the broad criteria agreed upon are as follows:

Criteria stated in the Constitution focus on three basic questions:

1. Is the particular applicant an appropriately qualified person?

2. Is he or she a fit and proper person, and

3. Would his or her appointment help to reflect the racial and gender composition of South Africa?

Supplementary Criteria:

1. Is the proposed appointee a person of integrity?

2. Is the proposed appointee a person with the necessary energy and motivation?

3. Is the proposed appointee a competent person?

(a) Technically competent

(b) Capacity to give expression to the values of the Constitution

4. Is the proposed appointee an experienced person?

(a) Technically experienced

(b) Experienced in regard to values and needs of the community

5. Does the proposed appointee possess appropriate potential?

6. Symbolism. What message is given to the community at large by a particular appointment?

WHAT CAN UNDERMINE PUBLIC CONFIDENCE IN THE JUDICIARY?

I have wished to convey to you that there are many, many elements that form the foundation of public confidence in the judiciary, from the temperament and mental and emotional discipline of judges to the structure of court administration to the racial and gender composition of the bench.  It should not be surprising that public confidence is hard to gain, but easily lost.  While the steps already discussed are aimed at fortifying public confidence, the failure to achieve those steps will erode the confidence that presently exists.  In addition, there are two other factors which are, in my view, of particular concern: judicial misconduct; and baseless criticism of the judiciary.

Firstly, confidence in the judiciary is eroded when judges act without integrity. Judicial misconduct undermines the esteem with which society holds the judiciary, and can only weaken the willingness of the public to accept judicial decisions.  This is why it is critical that we hold judges to the highest ethical standards and come down hard if they fail to meet these standards.  When misconduct occurs, judicial disciplinary procedures must be credible, effective and swiftly implemented.

The second threat to public confidence comes not from within the judiciary, but from without.  Unbridled and unwarranted attacks on the judiciary, whether from political parties or academics or political commentators, imperils confidence in the courts.  This does not mean that court decisions should not be criticised, or that judges who engage in misconduct should not be criticised.  What this means is that criticism should focus on the reasons for the decisions or the unacceptable ethical conduct.

It is completely appropriate, and indeed healthy and necessary, that the decisions of judges be subjected to scrutiny.  Judges are human, and no matter how diligently they attend to their duties, mistakes are inevitable.  At the same time, the judicial system has a built in mechanism for the correction of errors – the opportunity to appeal. Parties should take advantage of this opportunity and invoke the appellate process where they believe that a judge has made a mistake.  For interested parties and academics alike, constructive criticism is crucial in the development of the law.  Nevertheless, criticism should be directed at the judge’s analysis, rather than at the judge’s person.  And at no time should anyone, particularly public officials, question the necessity of respecting and obeying the judgment, no matter how strong their disagreement.

CONCLUSION

The role of the judiciary in a constitutional democracy is an expansive one.  Decisions of judges affect many people.  Courts have the power to overrule even the most popular decisions of other arms of the state if they believe they are contrary to the Constitution.  The acceptance and support of these and all court decisions by society depends upon public confidence in the integrity and independence of the judiciary.[13] So too does the respect for the rule of law in the mind of the public.  To preserve public confidence, it is vital that we take measures to ensure that the courts work swiftly and effectively, to encourage the highest respect for principles of integrity and fairness in the judiciary, and perhaps most of all to safeguard judicial independence.

Public confidence in the judiciary is especially vital during this formative stage of our constitutional jurisprudence.  Our courts, in particular, the Constitutional Court, are still engaged in a delicate, fundamental process of developing our constitutional jurisprudence.  During this formative stage, the role of the judiciary in our constitutional democracy will be tested to its ultimate limits.  As we have seen in the past, courts are being called upon to intervene in the parliamentary process and thus intrude into the affairs of Parliament; courts are being called upon from time to time to strike down crucial legislation aimed at addressing some of the pressing issues in our constitutional democracy such as land dispossession; courts are being asked to set aside government policy on health and housing issues.  Decisions taken by the executive, regardless of the nature of the decision, are being challenged in our courts.  And courts are being drawn into internal struggles within political parties.

In discharging its role during this formative period, the judiciary must fall back on the sources of strength it has drawn upon over the centuries – its independence, impartiality and integrity.  It is these values which have made the judiciary the important institution that it is.  It is the faithful and diligent pursuit of these values which will earn the judiciary public confidence and help it to sustain this confidence, which is an essential condition for realizing the judicial role.

And to the public may I say this:

“In a society such as ours, the judiciary needs the full confidence of the public if it is optimally to perform its task of helping to maintain the `precarious equilibrium’.  Public confidence is, however, elusive: it may not at times be measured by the majority’s opinion or by what is said in the media.  It is easier to see when it has gone than when it remains.  It is easier to say what should protect it than what actually threatens it.  What is plain is that not all threats to public confidence are of the judiciary’s own making.  The community has its own role to play in maintaining the precarious equilibrium; and the entire community needs to take a genuine and constructive interest in its judges.  The judges are there only to serve the community, and they will serve it all the better with the community’s confidence.”[14]

Thank you for your attention.


[1] Comments attributed to ANC Youth League Secretary-General, Vuyiswa Tulelo, www.iol.co.za ‘Official not sorry for ‘drunk’ slur on judge’. Article was originally published in the Cape Times on 9th August, 2010. This was in response to an interdict granted by the High Court in Grahamstown interdicting the ANCYL from proceeding with its conference in the Eastern Cape without the involvement of a disbanded provincial executive.

[2] The Citizen, ‘ANCYL warns judiciary’ 3 August, 2010. The statement is attributed to ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo.

[3] Id.

[4] Justice Susan Kenney “Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium.”

[5] Aharon Barak, ‘The Judge in a Democracy’, Princeton University Press, 2006 at page 109.

[6] Hamilton, The Federalist Papers, No 78, New York:  Random House, 504.

[7] Mr. Justice I. Mahomed, ‘The role of the Judiciary in a Constitutional State’, Address at the First Orientation course for new judges, 115 SALJ 111 1998 at page 112.

[8] Murray Gleeson, Chief Justice of Australia, Public Confidence in the Judiciary at page 1 (www.hcourt.gov.au/speeches/cj/cj_jca.htm).

[9] Justice TH Smith, ‘Court Governance and the Executive Model’, The Judicial Conference of Australia, Colloquium,  Canberra, Australia 2006, at page 17.

[10] Barak at page 111-112.

[11] Barak at page 110.

[12] F Kitto ‘Why Write Judgments?’ (1992) 66 Australian Law Journal 787 at 790. Also cited in Justice Kenny’s paper on page 9.

[13] Chief Justice John D. Richard, Federal Court of Canada “The Role of the Judiciary in Canada”, (2000) at page 1.

[14] Justice Susan Kenny, ‘Maintaining public confidence in the judiciary: a precarious equilibrium’ (1999) 25(2) Monash University Law Review 209 at page 223-4.

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